2011 P L C (C.S.) 1373

2011 P L C (C.S.) 1373

[Sindh High Court]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUHAMMAD NUSRAT ALI and 3 others

Versus

PROVINCE OF SINDH through Chief Secretary,Government of Sindh and 3 others

Constitutional Petitions Nos.D-1756 and D-1912 of2009, decided on 23rd May, 2011.

Sindh High Court Establishment Rules, 2006—

—-Part-I, Clause-15—Finance DepartmentNotification No. B1/2 (18) 1996, dated 25-11-2006—Constitution of Pakistan,Art.199—Constitutional petition—Utility and judicial allowance—NationalJudicial (Policy Making) Committee—Implementation ofrecommendations—Petitioners were members of establishment of Sindh High Courtand had sought recovery of judicial and car allowances with effect from1-1-2008, as per recommendations of National Judicial (Policy Making)Committee—Validity—Employees of Lahore High Court and Peshawar High Courthad been extended the benefit of increase of allowances inquestion—Notification which provided for payment of arrears had nexus to therecommendations of National Judicial (Policy Making) Committee which hadspecifically provided for increase of allowances in question from1-1-2008—Word “arrears” as appearing in the notification could notbe considered to be surplus, superfluous and it had to be given effect from1-1-2008—High Court directed the authorities to disburse arrears of judicialand car allowances to employees of Sindh High Court within a period of twomonths—Petition was allowed accordingly.

Khan Chand Tiloka Ram v. State of Punjaband others AIR 1966 Punjab 423 rel.

Muhammad Ali Hakro for Petitioners.

Rasheed A. Rizvi for Petitioners (in C.P.No.D-1912 of 2009).

Sheraz Iqbal Chaudhry, Standing Counselfor Respondent No.3.

Adnan Karim, A.A.-G. along withHabib-ur-Rehman, Section Officer, Budget, Revenue Department, Government ofSindh for Respondents.

Date of hearing: 27th April, 2011.

ORDER

GULZAR AHMED, J..— By this application (Miscellaneous No.2465 of2011), petitioners have prayed for implementation of the order dated 8-4-2010by which this petition along with C.P. No.D-1912 of 2009 were disposed of bynoting the fact that the Hon’ble Chief Justice of this Court by exercisingpowers conferred by clause-15 Part-I of the Sindh High Court EstablishmentRules, 2006 read with powers conferred by the Finance Department NotificationNo.B1/2(18) 1996 dated 25-11-2006 has issued two notifications, both dated2-4-2010, by which utility and judicial allowances of staff/officials of thisCourt and Bench at Sukkur, Circuit Courts at Hyderabad and Larkana wereenhanced w.e.f. 1-3-2010 and judicial and car allowances of the Officersworking in B-17 of this Court and Bench at Sukkur, Circuit Courts at Hyderabadand Larkana were also enhanced. With regard to arrears the Court observed asfollows:—

“Itis however, stated by the learned counsel that as per the above Notificationarrears have not been paid due to unavailability of funds and it is mentionedin the subject Notifications that the said allowances will be paid to theconcerned Employees from the month of March, 2010 onward out of the sanctionedBudget grant of this Court for the Fiscal year 2009-2010 and the arrears wouldbe paid as and when funds will be made available by the Finance DepartmentGovernment of Sindh. The learned counsel for the petitioners submits thatthough the issue of payment of allowances has already been delayed, therespondents may be directed to pay the arrears without any further delay asexpeditiously as possible. Mr. Miran Muhammad Shah learned Addl. A.-G. presentin Court contends that since a considerable amount is involved thereforereasonable time may be granted. It may be noted that once a competent authorityin exercise of powers has already enhanced the allowances, it is incumbent uponthe Finance Department Government of Sindh to make the funds available. Lookingat the amount involved and being at the end of the current financial year, wewould direct that such arrears would be paid within two months from the date of this order. Let copy of this order be forwarded to the A.-G. Sindh for information andcompliance.”

The arrears, as noted above, were notpaid to the employees/ officers who have filed this application for theirpayment. On 22-3-2011 statement was filed by the Secretary, Finance Department,Government of Sindh in which with regard to payment of arrears the followingstand was taken:—

“Asregards payment of arrears of enhanced Judicial Allowance, no request forreleasing additional funds for enhanced Judicial Allowance has been receivedfrom Law Department/Sindh High Court by Finance Department.”

The Additional Advocate-General has fileda statement dated 12-4-2011 with whichis attached the original letter dated 9-4-2011 of the Section Officer (Legal)of Finance Department, Government of Sindh addressed to the Advocate GeneralSindh. In the last para which is with regard to arrears it is noted asfollows:—

“Thisdepartment is unable to know the period for which arrears are being claimed bythe employees when the honourable Court has enhanced the rates of Utility andJudicial Allowances with effect from 1st March, 2010. Besides, FinanceDepartment has already made necessary budgetary provisions in the BudgetEstimates, 2010-11 as per demand of the Registrar, SHC.”

Mr. Rasheed A. Razvi, the learned Counselfor the petitioners has contended that the Government is not releasing arrearsof the allowances granted by the two notifications and unnecessarily confusingit with the date of 1-3-2010. He has further contended that there is specificmention of payment of arrears other than payment w.e.f. from 1-3-2010 in thetwo notifications and such is also apparent from the order dated 8-4-2010 wherethe only reason assigned for not disbursing the arrears by the A.A.-G., Sindhwas that as it involves considerable amount therefore, reasonable time may begranted. Learned Counsel thus contended that the Government has not disputed ordenied the liability for payment of the arrears and such be allowed to theemployees and officers as per the notification and the order passed by theCourt.

On the other hand, Mr. Adnan Karim, thelearned A.A.-G. Sindh although made effort to dispute payment of arrears byreading the two notifications but when confronted with the order dated8-4-2010, he too was unable to defend the position that the arrears are notpayable. He has further contended that the Government has challenged the orderdated 8-4-2010 in the Hon’ble Supreme Court but candidly admitted that there isno stay order passed by the Hon’ble Supreme Court. He, however, asserted thatthere is no date provided in the notifications for payment of arrears and forthis reason also the payment of arrears could not be given effect to by theGovernment. To the last submission of the learned A.A.-G., Sindh, Mr. RasheedA. Razvi has pointed out that these petitions were filed for the implementationof the recommendations of the National Judicial (Policy Making) Committee dated18-12-2007 filed as annexure P-1 with the petition who has approved the ratesof allowances of officers and staff which are to be paid from 1-1-2008. He hasstated that such allowances were paid to the officers/staff by the Lahore High Court as well as by the Peshawar High Court from 1-1-2008 and in thepetitions also the petitioners have prayed for granting of the allowancesw.e.f. 1-1-2008. He has contended that there is no ambiguity regarding the datefrom which the arrears are to be paid.

We have considered the submissions oflearned counsel for the parties and have gone through the record.

Though it is specifically mentioned inthe two notifications dated 2-4-2010 that the utility and judicial allowance ofstaff/officials in B-1 to B-16 of this Court, its Bench at Sukkur, CircuitCourts at Hyderabad and Larkana is enhanced w.e.f. 1-3-2010 and judicial andcar allowances of officers in B-17 of this Court, its Bench at Sukkur, CircuitsCourts at Hyderabad and Larkana is enhanced from 1-3-2010 but the last para ofboth the notifications reads as follows:—

“However,due to non-availability/shortage of funds, it has been resolved that the saidallowances will be paid to the concerned Employees from the month of March-2010onward out of the sanctioned Budget Grant of this Hon’ble Court for the Fiscalyear 2009-10. The arrears will be paid as and when funds will be made availableby the Finance Department Government of Sindh.”

This para of the notifications hasalready been observed in the order dated 8-4-2010, where it was noted thatallowances in terms of two notifications will be paid to the concernedemployees from the month of March, 2010 onwards out of sanctioned budget grantof this Court for the fiscal year 2009-10 and the arrears would be paid as andwhen funds will be made available by the Finance Department, Government ofSindh. To the extent that arrears are payable, there is no ambiguity in thenotifications as the same has already been lucidly and expressly mentioned inthe order dated 8-4-2010. There was also no opposition from the side of Government for payment of arrears as the learned A.A.-G.,Sindh who has appeared before the Court on 8-4-2010 has only contended thatsince the considerable amount is involved therefore reasonable time may begranted. Therefore the Government has agreed to pay the arrears. The questionis from which date such arrears are to be paid. Although it seems that demandfor increasing the allowances seems to be pending with the Government of Sindhbut cause for filing the petitions was provided by the recommendations dated18-12-2007 of the National Judicial (Policy Making) Committee, wherein it hasrecommended for increasing the allowances from 1-1-2008. The petitioners havealso claimed in their petitions the increase in allowances from 1-1-2008. Inthe order dated 16-10-2009 the Court has observed as follows:—

“Wehave taken serious view of the matter and direct the respondent No.4, FinanceDepartment, Government of Sindh to allocate the requisite fund as requisitionedby respondent No.2 to comply with the National Judicial Policy in consonanceand at par with privileges and benefits as are extended to the employees ofother High Courts.”

In the same order it was noted thatemployees of Lahore High Court and Peshawar High Court have been extended thebenefit of increase of these allowances. Thus, it is clear from all attendingcircumstances that two notifications which provide for payment of arrears havenexus to the recommendations of the National Judicial (Policy Making) Committeedated 18-12-2007 which has specifically provided for increase of theseallowances from 1-1-2008.

In the case of Khan Chand Tiloka Ram v.State of Punjab and others (AIR 1966 Punjab 423) a full bench of Punjab HighCourt in the dealing with the question of interpretation has observed asfollows:—

“Itis a recognized principle of interpretation of statutes that in order to givemeaning to the clear and definite intention of the Legislature some words mayin suitable cases be read in the provisions to avoid reducing the provisions toan absurdity.”

In the same judgment, the full bench hasfurther observed as follows:—

“Itmust be presumed that every word used in a section of a legislative enactmenthas been inserted with a purpose and some meaning must be assigned to it. Theintention of having uselessly added surplus words or phrases should never beattributed to the legislature. The Courts always presume, while interpretingstatutes, that the legislature inserted every part thereof for a purpose andthe legislative intention is that every part of the statute should haveeffect.”

Keeping in view the above principle oflaw, the word arrears as appearing in two notifications cannot be considered tobe surplus, superfluous and it has to be given effect from 1-1-2008.

After hearing the learned counsel for theparties, through a short order dated 27-4-2011 we have allowed the applicationof the petitioners and directed that arrears of the allowances be disbursed tothe employees within a period of two months. Above are the reasons for thesame.

M.H./M-88/K Applicationallowed.